Board of Supervisors v. Archer

• Decision Date: 13 July 1971
• Citation: 96 Cal.Rptr. 379,18 Cal.App.3d 717
• Court: California Court of Appeals Court of Appeals
• Parties: BOARD OF SUPERVISORS OF the COUNTY OF MODOC, Petitioner and Respondent, v. Merville E. ARCHER, County Auditor, and Franklin R. Lew, County Assessor, etc., Appellants. Civ. 12623.

Page 379

96 Cal.Rptr. 379

18 Cal.App.3d 717

BOARD OF SUPERVISORS OF the COUNTY OF MODOC, Petitioner and Respondent, v. Merville E. ARCHER, County Auditor, and Franklin R. Lew, County Assessor, etc., Appellants.

Civ. 12623.

Court of Appeal, Third District, California.

July 13, 1971.

Rehearing Denied Aug. 12, 1971.

Hearing Denied Sept. 8, 1971.

[18 Cal.App.3d 719] Robert A. Barclay, Dist. Atty., Alturas, for appellants.

Carr & Kennedy, Redding, and Paul B. Baker, Alturas, for petitioner and respondent.

BRAY, Associate Justice (assigned).

Appellants appeal from a judgment of the Modoc County Superior Court granting a peremptory writ of mandate commanding respondents Modoc County Auditor and Assessor, respectively, to reduce certain tax assessments to zero.

QUESTIONS PRESENTED

1. The board of supervisors are entitled to bring this action.

2. Mandamus is the appropriate remedy.

3. The board of equalization erred in holding that as a matter of law the permits and leases were not taxable.

RECORD

Appellant Modoc County Assessor levied certain possessory interest tax assessments for the 1968--1969 and 1969--1970 taxable years. Thirty-five of these tax assessments were on grazing permits issued pursuant to section 315b of title 43 and section 580l of title 16 of the United States Code. Thirty-three assessments related to agricultural leases. The 68 owners of the permits and leases protested these assessments to the board of supervisors, contending that their interests had no cash value. The board, sitting as a board of equalization, held that the grazing permits had no cash value, that the full cash value of the agricultural leases was zero, and ordered the assessment roll to be reduced accordingly. Appellant auditor refused to make the required changes in the assessment roll, to issue warrants for tax refunds or to cancel the assessments. Appellant assessor in the two succeeding years continued to treat these grazing permits and agricultural leases as possessory interests and to assess them. Thereupon, respondent board of supervisors filed in the Modoc County Superior Court a petition for writ of mandate to compel appellants to follow the determination of the board of equalization. After a trial the superior court issued a writ of mandate compelling appellants to cancel to zero the possessory interest tax assessments for the 1968--1969 and 1969--1970 taxable years, to disburse refunds to taxes collected on said assessments and cancel delinquent taxes on said assessments, if any, and compelling appellant assessor to cancel to zero assessments on said interests for the 1970--1971 taxable years.

1. The Power of the Board of Supervisors to Sue.

Appellants contend that the board of supervisors is not a legal entity and hence may not bring this action. They cite no authority for this contention. Board of Supervisors v. Simpson (1951) 36 Cal.2d 671, 227 P.2d 14, was a proceeding in mandamus in which a writ of mandamus was issued compelling the District Attorney of Los Angeles County to bring abatement proceedings. In Board of Supervisors v. Superior Court (1957) 147 Cal.App.2d 424, 305 P.2d 255, the board of supervisors was granted a writ of prohibition prohibiting the enforcement of a superior court order and other proceedings. In Board of Supervisors v. Cothran (1948) 84 Cal.App.2d 679, 191 P.2d 506, the board sought a writ of mandamus to compel the county clerk to sign school bonds. In Board of Supervisors v. Superior Court (1957) 150 Cal.App.2d 618, 310 P.2d 37, the board was granted a writ of prohibition restraining the superior court from certain proceedings. California Government Code section 25303 states: 'The board of supervisors shall supervise the official conduct of all county officers * * * and particularly those charged with the assessing, collecting, safekeeping, management, or disbursement of the public revenues. It shall see that they faithfully perform their duties * * *.' In Knoff v. City etc. of San Francisco (1969) 1 Cal.App.3d 184, 196--197, 81 Cal.Rptr. 683, the court referred to the duty of the board of supervisors to supervise the official conduct of the assessor, and that it had an active duty to take timely and appropriate action concerning property tax revenues. In County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 59 Cal.Rptr. 609, 428 P.2d 593, the board of supervisors joined with the County of Sacramento in mandamus to compel the assessor to comply with a certain section of the Revenue and Taxation Code, and on page 846, footnote 3, 59 Cal.Rptr. on page 612, 428 P.2d on page 596, the court said: 'the county and its board of supervisors have sufficient interest in the matter to be entitled to issuance of the writ.' The board of supervisors is a legal entity entitled to bring this proceeding.

2. Mandamus is the Appropriate Remedy.

Except for a mandamus procedure respondent has no way to enforce its orders. Appellants contend that the individual taxpayers are the only beneficially interested parties, and therefore each one should file his own individual lawsuit. The board of supervisors and the county are also beneficially interested in having the validity of its orders determined. The trial judge pointed out that to decline to issue the writ because of the fact that the possessory interest owners could bring suits at law for the recovery of the taxes paid under protest would be to compel each taxpayer to file a separate suit for refund, necessitating some 69 separate actions, in each of which the same issues would have to be readjudicated, all of which could be avoided and decided in this one proceeding.

A writ of mandate may issue to any board 'to compel the performance of an act which the law specially enjoins * * *.' (Code Civ.Proc., § 1085.) When an officer dealing with assessments fails to act in accordance with the law, a writ of mandate can issue to compel the officer to comply with the law. (See State Board of Equalization v. Watson (1968) 68 Cal.2d 307, 310--311, 66 Cal.Rptr. 377, 437 P.2d 761; County of Sacramento v. Hickman, supra, 66 Cal.2d 841, 845--846, 59 Cal.Rptr. 609, 428 P.2d 593.) Mandamus will avoid a multiplicity of suits. It is clear that the board of supervisors is a real party in interest and has no other plain, speedy or adequate remedy at law.

The Demurrers Were Properly Overruled

The petition herein also contained causes of action of the concerned taxpayers. One ground of demurrer was misjoinder of parties. Appellants moved to sever the causes of action of the taxpayers; the court ordered them to be severed. Appellants argued that the petition was demurrable becuase it only identified the tax assessments in question by the assessor's office number, volume and page of the taxpayer's application for refund and did not inform appellants of the dollar amounts of the assessments. This fact did not make the petition vulnerable as the amounts were presumptively within appellants' knowledge. (See Ching Yee v. Dy Foon (1956) 143 Cal.App.2d 129, 136, 299 P.2d 668.)

3. The Permits and Leases Were Taxable.

To understand the resolutions passed by the board of equalization, it is necessary to consider the proceedings before the board. The assessor had assessed the 68 permits and leases hereinbefore mentioned. Apparently, a few of the permittees and lessees had paid the levied taxes under protest. All 68 had filed written applications to the board of supervisors for a reduction in the assessment of their respective interests. Some 31 applications placed a value upon the holdings, varying from a low of $775 and a high of $11,400. Others placed no value on the holdings. All attacked the validity of the assessment, contending that the interests were not taxable.

The board met as a board of equalization to consider these protests. The assessment roll was not produced nor was evidence offered as to the amount of the tax on any interest, nor evidence of what taxes had been paid or not paid. Apparently, the district attorney informed the board that sitting as a board of equalization it had no authority to pass upon the question of whether the permits or leases were taxable, but only to equalize the taxes.

The assessor stated that the hearing was being conducted under rules 301 to 326 of the California Administrative Code. (These deal with proceedings before the board of equalization.) He further stated that the 'purpose of this hearing is to challenge the valuation of Possessory Interest granzing permits made in compliance with rule 126. Rule 126 says: 'The possession of, claim to, or the right to the possession of publicly owned land for grazing livestock or raising forage is a taxable possessory interest. " The assessor also stated that the real reason of the hearing was 'to find the 'right' value for these assessments.'

Mr. John Weber, whose testimony before the board was adopted by all the other permittees, testified that the grazing permits were merely licenses and not a possessory interest and not taxable. He also stated that they had no cash value. John Cross, whose testimony was adopted by all the lessees, testified that the leases created no cash value interest.

The board then passed two resolutions. Resolution No. 68--1 deals with the grazing permits. It stated that the board of supervisors met 'to hear written protests against the imposition of a possessory interest tax on both grazing permits or licenses on public lands * * *.' It stated that the board had 'considered all evidence presented For and against said possessory interest taxes, and now finds that the values as determined by the Modoc County Assessor are excessive, and further finds that said grazing permits or licenses on the public land, do not, in fact, have any full cash value.' The resolution then orders 'the assessment roll reduced on each of the protests filed, to zero for the taxable year 1968--69.'

Resolution No. 68--2 deals with the agricultural leases and states that the board...